HAVA (Hurt American Voters Act) Matters!! I wasn't in Minnesota - I was in Virginia, but let me share some stories of problems at the poll -- because they may decide the next Senator from Minnesota -- and they should force to look again at how we conduct our elections.
I was going to write a different diary for today -- one that discusses the significance of Obama's victory for ALL Americans, but there is another matter that strikes me as more urgent for all of us. Right now, according to the Minneapolis Star-Tribune, Al Franken trails by 724 votes (the Minnesota SOS gives Franken one fewer vote than the newspaper does -- but 725 votes would give Franken either a tie or a win, under either count).
Based on my experience yesterday as a Voter Protection attorney for the Obama campaign in northern Virginia, I'm guessing that there are a lot of provisional ballots in Minnesota that haven't been counted yet -- a lot more than the margin. In fact, if one accepts the premise that these provisional votes are much more likely to come from more transient Democratic voters, Franken's winning margin is in those votes. They must be counted, but therein lies the problem: Many of these votes will be thrown out.
I apologize if some of this piece starts to sound too lawyerly, but there are important legal issues here.
I hope my experience wasn't typical -- based on the response from the Obama campaign offices, the precinct I was in did have more issues than most.
However, even if it wasn't typical, if my experience was replicated in other polling places, then a lot of those votes shouldn't have been on provisional ballots. Officious election officials were forcing qualified voters to vote provisionally. Those votes weren't counted yesterday. They are in envelopes that will be opened today, and election officials will make another determination as to whether those votes should have been counted -- that is, whether they were cast by voters who were registered and qualified to vote.
More than likely, that determination will also depend on whether the voters were voting in the correct precinct. In my adopted home state of Maryland, that was the decision of the courts recently -- a vote cast in the wrong precinct cannot be counted.
In the precinct, I worked for most of the day -- Mt. Vernon Woods Elementary School in Fairfax County (outskirts of Alexandria) -- there were a number of voters who were rudely surprised to find that they were not registered at their current address, or that their registration had been placed inactive. Many of these voters were given provisional ballots -- some of them were actually turned away.
None of that should have happened -- and I'll explain why -- but, one case really stands out for a host of reasons: There was a voter (I'll hold his name in confidence) who was told that he was not eligible to vote because of a felony conviction. This really surprised the voter, because he figured he'd know if he'd ever been convicted of a felony, and he insisted that he had not.
His protests fell on deaf ears and he was turned away from the poll. He was given the phone number in Richmond (state capital) to call to have his voting rights restored -- Virginia has a process for felons to petition the Governor to have their gun rights and voting rights restored. This process takes months, or years, not hours.
That's where I came in -- and the folks from a non-profit called Election Protection. We noticed the man as he was heading for the parking lot -- thinking he might get the police to certify that he had no felony conviction record. After some phone calls, we discovered that there was no such conviction listed on his registration. However, for some reason, his old address was listed -- even though he'd voted in 2000 from his new address. We still don't know how this happened -- but it seems likely that the Registrar received undeliverable mail from the old address, and proceeded to move the registration to the inactive list (the voter hadn't voted since '00).
When we sent the man back inside, he was told that his registration was inactive and that he could not vote. Apparently, the first check-in worker did not understand why the voter's registration was closed, and erred in saying it was because of a conviction. After some pushing, there was a determination that he should vote provisionally. We argued to the Precinct Chief, and to the County Registrar, that this was a violation of the clear language of the statute. The voter should have been allowed to assign an affirmation of eligibility and been allowed to vote a regular ballot.
The Registrar would not order that, and the Precinct Supervisor would not relent without direction from the registrar. She didn't care what the law required, because she believed she was following the Registrar's direction. As we argued about depriving the voter of his lawful right, this election official said something that stunned me: She acknowledged the earlier mistake about the felony, but dismissed it, saying
"We assumed it was a felony -- I guess you're not from around here".
I could focus on the hideous prejudice that was implicit in her comment (she was white, the voter black), or the ugliness of it even it weren't racial, but there are larger problems afoot. The voter should have been allowed to vote on a regular ballot. The law was clear. But, he was forced to vote on a provisional ballot. And, this wasn't the only time something similar happened.
One woman even called the Board of Elections to be certain that the address on her registration had been changed...to confirm her voting precinct. She was told to head to the Mt. Vernon Woods school. When she got there, there was no record of her registration. There were a number of voters who came with new voter cards dated October 30th, but who were not on the precinct's voter list. Some were sent to other precincts, Others were given provisional ballots. This woman who'd been assured there was no problem by the central office, still had to vote provisionally.
We were unable to get a complete picture of why voters were being asked to vote provisionally, or what their numbers were, because our poll watcher was barred from approaching the table where these voters were directed to get their provisional ballots.
In this precinct, these votes won't matter. All the races were won handily by the Democratic candidates.
However, there is one race in Virginia where I imagine that the provisional ballots may determine the winner. Virgil Goode leads Tom Perrielo by less than 500 votes. Whether the provisional ballots cast in that district are counted my decide who takes that seat in January.
The problem with the provisional ballot isn't just that it isn't counted in the first count -- or even that bureaucrats later decide whether to count it or not. In a close race, these ballots are certain to be subjected to individual court challenge. One TV commentator recently noted that if Bush's Ohio margin had been smaller in '04, we'd still be in court fighting over counting the provisional ballots in that election.
In Goode's race, and in Al Franken's challenge to Norm Coleman, the Democratic challengers' campaign lawyers must focus on these ballots. There are votes there that should be counted, and without real advocates, those votes may be tossed out. More to the point, the margin for victory probably lies in those votes.
In Minnesota, there are predictions that the recount process may take a month or more. The parties involved must make sure that the provisional ballots are an important part of that process, no matter how long it takes. Voters came out to cast their ballots. Their effort should be respected...and their votes counted.
Of course, these are just some of the issues that the new Democratically-controlled government must examine to make our elections fairer, more democratic, more efficient, more reliable and more secure.
In the precinct where I spent most of the day, there were also problems with machines -- both the electronic touch-screen (DREs) and the optical scanners that apparently failed to record votes. I had computer experts tell me about their own experiences. Their stories were very disconcerting -- and not just because they left the poll uncertain if their votes were counted, or more probably lost. The most alarming aspects of their stories is that these were experts who were alert to the possibility of problems -- they caught problems that 99% of us might have overlooked and they were highly motivated to report the problems. OF course, there was no remedy in their individual situations -- no way to correct the machines' errors. Their stories must serve as important cautionary tales as lawmakers reconsider voting technology.
**** Update **** A number of posters have corrected me. Minnesota has same-day registration. There should be no issue in that election regarding such provisional ballots -- however there may be considerable other election irregularities. Indeed, the local paper reports that Franken's legal team is already compiling reports of those. My point, however, is independent of that race. I use Franken as a headline example of a race that is so close, such that provisional ballot issues could decide it (if there were such ballots, as there are in most states). Moreover, there is a larger problem where election officials are more interested in pushing off problems for later, for others to decide -- even though that decision may actually be the most important in deciding what happens with that vote.